Unpredictable Laws or Discrimination?

by Kristy Watkins

Despite the fact that a recent study concluded that children raised by same-sex couples fare better than their peers, gay, lesbian, and bisexual parents are still denied many legal rights in the United States. This fact becomes clear in a recent Texas case involving same-sex parents. Joe Riggs and Jason Hanna, a gay married couple, are the parents of twin boys, who were born using a gestational surrogate, an egg donor, and sperm from each of the men. DNA testing revealed each of the men’s paternity status, and the gestational surrogate signed the documents relinquishing her legal rights to the children.

The attorney for Riggs and Hanna drew up a three-prong petition: 1) remove the surrogate mother from both birth certificates; then 2) place each biogenetic father on the birth certificate of his own son; and then 3) grant a second parent adoption which would place the non-biogenetic father on each of the boys’ birth certificates. Similar Texas cases regarding surrogacy contracts and second parent adoptions of same-sex couples had been successful.But the Tarrant County family court judge denied all three prongs of the petition.

Why? Two reasons. In Texas, gestational surrogacy contracts are only legal between a married couple and same-sex marriages are not legally recognized. In the eyes of this judge, Riggs and Hanna were not legally married. Therefore the judge concluded that the entire surrogacy contract was invalid. The twins are currently in the custody of both men, who provide their daily care. Yet neither of their names is on their sons’ birth certificates. They are not legal fathers to their own sons.

While a good first step, a birth certificate is an important, yet non-binding, legal document. But Riggs and Hanna don’t even have that! This decision certainly reflects the long history of birth certificates being used as a tool of social control. State and local governments have used the presence, absence, or contents of birth certificates in order to uphold miscegenation laws; to signal illegitimacy, which stigmatized an infant born out of wedlock without a father listed; to invalidate the existence of transgender people; and to serve as a complicating factor in ART cases and same-sex parenting cases for decades.

My extensive research in this area indicates that the Tarrant County judge’s decision is highly unusual. In my dissertation, I explored how courts struggled to draw the boundary lines of legal parenthood. Specifically, I examined all state-level child custody decisions from 2003 to 2009 (sample size=127) that involved gay, lesbian, and bisexual parents. My findings revealed two striking conclusions: 1) courts privileged women over men as parents and 2) courts were more likely to grant legal rights to biological parents than non-biological parents. In the Riggs and Hanna case, my first finding proved true, while the decision contradicted my second finding. My sample contained zero cases in which the paternity of the biological father was denied after DNA testing. As a result of prioritizing of biological relationships, most courts would place a minimum of the biological father’s name on the birth certificate.

Indeed many courts view biology functions as the trump card for legal parent statuses. But this Tarrant County judge didn’t follow that pattern. Why? The lack of uniform family laws? Discrimination? Both. Uncertain laws allow for individual judges to use their judicial discretion to interpret laws in a variety of ways. This lack of uniformity allows for judges’ prejudice to affect their decisions, resulting in huge variability in the outcomes of court decisions. We can then see how one individual’s prejudice can translate into legal discrimination on a broad institutional level.

Can we change these uncertain laws? Yes, state legislatures and courts can make changes to attempt to standardize family law, but it does not happen often. For example, in May 2014, California’s Assembly passed a bill to modernize birth certificates, by allowing parents to select their preferred category of “father,” “mother” or “parent.” This bill is now off to the state Senate.

Both uncertain laws and the resulting discrimination continue to undermine the equal treatment of people in American society. When interviewed by the Dallas Voice author David Taffet, an attorney who specializes in ART law, Lauren Duffer, recommended that Riggs and Hanna refile their petition in a venue that is more friendly to same-sex couples, such as Dallas County. Duffer admitted “I don’t file any of my same-sex adoptions in Tarrant County.” But Riggs and Hanna should not be forced to “venue-shop” in order to receive fundamental rights for children who they created.

Kristy Watkins, Ph.D., is currently an independent sociology teacher and researcher, whose research has focused on the intersections of gender, sexuality, family, and law.

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